by Patricia J. Williams
At first there was near-unanimity of outrage and dismay. But in recent weeks, the polls reveal that Americans’ attitudes about the killing of Trayvon Martin have become starkly divided by race and party politics: Eight in ten blacks say Martin’s killing was not justified, compared with just 38 percent of whites.
Meanwhile, 56 percent of Republicans believe that there has been “too much coverage” in the media, as opposed to 25 percent of Democrats. There are plenty of theories to explain this shift, but surely one driver is that we seem to have stopped talking about the case itself and unconsciously substituted for it our usual litany of social anxieties.
It’s curious that so many discussions take an inevitable turn that is prefaced by: “Why aren’t we talking about…” The list of what we supposedly aren’t talking about is long and predictably partisan: gun culture in America; racially disparate rates of arrest and incarceration; “race card” playing; media as circus; statistics about “black-on-black crime”; school shootings as exemplary of “white-on-white” crime; “reverse racism”; high- and low-tech lynchings; Prohibition-era gangsters versus drug-prohibition-era “gangstas”; hoodies as exuding a nefarious life of their own; profiled presumptions-of-guilt as trumping constitutional presumptions-of-innocence; the propriety of shadowy organizations like ALEC crafting, funding and proselytizing for Stand Your Ground laws nationwide; whether Hispanics are white; and whether President Obama’s putative son does or does not look like Newt Gingrich’s putative son.
These may be worthy issues, but they have drifted our focus away from how specific facts about the Martin case intersect with the specific peculiarities of Florida law. Given that George Zimmerman now faces trial, now is a good time to remind ourselves what this case is actually about.
Here’s the relevant text of Florida Statutes Chapter 776: “A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force.
However, a person is justified in the use of deadly force and does not have a duty to retreat if: …He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another.”
Any person who does have such reasonable apprehension is “immune from criminal prosecution and civil action.” However, this immunity is not available to one who “initially provokes the use of force against himself or herself.”
Thus framed, the issues are relatively simple: Was Zimmerman’s belief that his life was in danger a reasonable one? Was his admitted pursuit of Martin “necessary to defend himself”? And did his admitted initiation of the encounter provoke use of force by Martin? These are questions of fact, now properly before a court of law.
What makes the case exceptional is neither race nor the politics of self-defense alone but rather the complete failure to prosecute — or even investigate — before now. Among the many flaws of Stand Your Ground, the standard of reasonable belief is not a warrant for total subjectivity.
“Reasonableness” is an objective measure in the law; it refers to a public or community standard, not a privatized state of mind. The reason this case attracted such attention in the first place was the shocking complacency of the Sanford Police Department as enforcers of that standard.
Police failed to follow the most basic procedures for a homicide investigation: Zimmerman was never tested for drugs or alcohol, while Martin’s body was. After sticking him in the morgue, there was no attempt to identify Martin or to notify his family.
This was not just sloppy and unprofessional; it flouted basic tenets of our jurisprudence. The police’s facile conclusion that there was nothing to contradict Zimmerman’s account is explicable only on one of two grounds: Either they blindly deferred to the word of the confessed killer and thus abandoned any adherence to a community standard; or they instinctively shared Zimmerman’s vision, establishing being frightened to death by a young black man as a reasonable community norm.
Another strange feature of the current debate is the frequent assertion that because there were no witnesses to the shooting, there is “no evidence.”
In fact, there is plenty: forensic reports about signs of struggle, the fact that Martin was unarmed, Zimmerman’s 911 call detailing intent to pursue Martin despite police exhortation not to, Martin’s phone conversation with a schoolmate, the voiceprint analysis of cries for help and, of course, Zimmerman’s catalog of at least forty-six prior calls to 911 to report a panoply of misplaced suspicions directed at unidentified others.
The fact that this is “circumstantial evidence” does not render it a lesser kind of proof. Most crimes don’t come outfitted with cameras focused on the crime scene, after all, particularly homicides.
Nearly all convictions are won by pointing to the irrefutable logic of a picture drawn from largely circumstantial bits and pieces of evidence.
Finally, there are those — particularly our friends at Fox News — who conflate the call for justice with a call to convict. This is a fundamental misapplication of civics. It’s worth repeating: What’s distressing about Martin’s death is that it took so long for his killer’s actions to be interrogated at all.
Political philosopher Giorgio Agamben has observed that what distinguishes a state of exception is “not the chaos that precedes order but rather the situation that results from its suspension.”
When law enforcement officers accept — without question — an admitted killer’s assertion that a homicide was justified because “he scared me,” they license open season. Without question.
Patricia J. Williams, a professor of law at Columbia University and a member of the State Bar of California, writes The Nation column “Diary of a Mad Law Professor.” Her books include The Rooster’s Egg (1995) and Seeing a Color-Blind Future: The Paradox of Race (1997).